Six Marriage Equality Cases at the Sixth Circuit Today: A Preview

The Cincinnati-based Sixth Circuit Court of Appeals will hear oral arguments in a series of marriage equality cases today from the jurisdiction's four constituent states: Kentucky, Michigan, Ohio, and Tennessee. It is an unprecedented coming together of marriage equality litigation that has the potential to change the destiny of marriage in the federal courts for several reasons:

First, these cases cover the entire Sixth Circuit and any decision could affect all of them directly, even if a decision is stayed pending appeal to the Supreme Court. We have seen this happen in the Fourth Circuit, where the appellate court overturns a ban on marriage equality and other states in the circuit, North Carolina and West Virginia, either stop defending their own bans or take other pro-equality actions because they see the writing on the wall even though the decision is stayed pending appeal.

Second, the three-judge panel reflects the right-of-center tilt of the circuit, consisting of a Clinton appointee and two George W. Bush appointees, one of whom has made his fiercely conservative views public.

And, third, as the third federal appeals court to hear a post-Windsor marriage case -- after the Tenth (the Utah case) and the Fourth (the Virginia case), but before the Seventh (on August 26), the Ninth (on September 8), and at some point, the Fifth -- the Sixth Circuit is being watched to determine if a pattern is emerging among the circuits or if there will be a split among the panels.

AFTER THE JUMP, I summarize the cases and briefly profile the judges on the panel. I will also discuss a few things to watch for during the marthon oral argument, scheduled to being at 1 PM.

Obergefell v. Himes and Henry v. Himes: Ohio appeals two district court decisions that the Sixth Circuit consolidated into one, requiring the state to recognize valid out-of-state marriages between same-sex couples on Ohio death and birth certificates. Although the facts are narrower here, the decision would affect ban on gays marrying in the state, in general.

Tanco v. Haslam: Tennessee appeals a district court's ruling that the state must respect the marriages of three same-sex couples who were legally married out of state. Again, although the case is narrower than, say, Michigan's, the decision will affect the state's general ban on gays marrying.

The Judges

All appellate court cases get hearings before three-judge panels of the circuit. Hearing these cases today will be the following judges:

Martha Craig Daughtrey (right), a senior judge and Clinton-appointee, has a long tradition of progressivism. She has opposed the death penalty and has supported affirmative action in her opinions.

Deborah Cook (top photo, right), a George W. Bush appointee, has a more conservative history dating back to her time on the Ohio Supreme Court.

But all hope is not lost. Judge Sutton (and Judges Cook and Daughtrey, for that matter) is not a straight party-line judge. He may conservative in some areas, but he also issued a decision upholding the constitutionality of Obamacare.

Although we cannot tell how these judges will decide the marriage equality cases simply from their political affiliations and which president appointed them, it is worth noting that, at least with respect to marriage cases, the party of the nominating president has not always mattered much. Sure, the antigay Judge Niemeyer in the Fourth Circuit was appointed by a Republican. But many of the district and appellate judges who have tossed bans on marriage equality -- even including those judges that tossed DOMA -- have been Republican appointees.

What Else to Watch For?

Where are the questions going? Oral argument questions do not always show how a judge will rule, but they can. Pay attention to the questions from Judge Cook and Judge Sutton (pictured, right), in particular. Judge Cook is a rigorous jurist and Judge Sutton may be conservative, but he is not blindly so.

The conservative panel gives us the best chance yet for an anti-equality ruling, even though I find that unlikely given the legal consensus emerging from our post-Windsor 30-court winning streak. But if we do get an anti-equality ruling, that means we will have a split among the circuits on the legality of the bans, thus ensuring at least one of the marriage cases will be taken up by the Supreme Court. If not, if we see another pro-equality ruling, the consensus holds and, as I have argued before, there may be no reason for the Supreme Court to take the case.

Equal protection or due process? We have recently seen several cases decided under the Due Process clause, calling marriage a fundamental right, rather than the Equal Protection clause, arguing that treating gays differently than heterosexuals is wrong. What this panel appears to be interested in matters because we are still trying to understand what Justice Kennedy meant in his Windsor opinion and if lower court decisions claim he called the right to marry "fundamental" and those decisions get reviewed at the Court, that could result in a very different case and majority alignment if, as some scholars argue, Kennedy is none to eager to dive into the fundamental right ocean.

Broad or narrow? These cases have the potential to eradicate marriage discrimination in the entire Sixth Circuit. Or, the judges could limit their decisions to the specific facts in Ohio and Tennessee and force advocates in those states to return to court to get full marriage equality. Keep an eye out for whether the judges are concerned about issuing decisions that are too broad.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Comments

Sigh. Six cases in the sixth district court on the sixth day of the month. You know the bible beaters are going to eat that one up.

Posted by: Truther | Aug 6, 2014 9:32:32 AM

That's exactly what I've been saying, TRUTHER...like they need more ammunition.

Posted by: WOLF | Aug 6, 2014 10:00:40 AM

Ooooh, Truther, 6-6-6. You are so right, I mean, correct. The "thumpers" will have a field day with this realization.

Posted by: HadenoughBS | Aug 6, 2014 10:05:34 AM

They can find a way to ruin any good news.

Posted by: Truther | Aug 6, 2014 10:09:53 AM

Who cares Debbie Downers? They're not your parents.

Posted by: Dan | Aug 6, 2014 10:11:28 AM

http://www.kentucky.com/2014/08/05/3366437/catholic-leader-in-ohio-urges.html?sp=/99/164/
Catholic leader in Ohio urges marriage prayer
This soap has become the religious theme.

Posted by: ppp | Aug 6, 2014 11:15:26 AM

You have not mentioned one of the most important arguments being made to strike down the ban on recognizing marriages performed in other states where a couple was living prior to moving to a "marriage ban" state: that is, the right to travel between states that is guaranteed by the US Constitution "Privileges and Immunities" Clause (which is totally different from the Due Process Clause and Equal Protection Clause). This right has been recognized for over 50 years. In a couple of the same-sex marriage cases, this right has been said to prohibit a state from refusing to recognize marriages performed out-of-state for couples who lived in those other states and then moved to the marriage-ban state.

It is very, very possible that this Privileges and Immunities argument might be the one that it used to strike down bans of refusing to recognize marriages performed in other states.

Posted by: MiddleoftheRoader | Aug 6, 2014 11:44:01 AM

If previous cases can be viewed as a guide, it will take another two or three months for the appeal court to issue a ruling.
The Archbishop of Ohio needs a special prayer session. Apparently god was not listening and their previous prayers not answered. Using some kind of threat may be more effective. Like skipping some Sunday services to show their displeasure. They need to send some warning to god. He may have dozed off.

Posted by: simon | Aug 6, 2014 11:44:39 AM

is there a live feed?

Posted by: woody | Aug 6, 2014 11:50:00 AM

No live steaming. Hopefully, the court will post it afterward.

Posted by: woody | Aug 6, 2014 11:53:01 AM

These three would look ridiculous, and politically tainted, if they issue a decision opposite to the prevailing trend.

I doubt they would be that stupid!

Posted by: BRAINS | Aug 6, 2014 12:03:58 PM

Would they have consolidated all these suits if they were going to issue narrowly?

Disappointed that the court (and lawyers) seems so reluctant to call a spade a spade, and admit (in line with evidence) that Sixth-Circuit states are virulently anti-gay.

Posted by: Randy | Aug 6, 2014 6:42:38 PM

I really liked Sutton's questions. He thinks it would be better if voters overturned the bans at the ballot box, but he also knows the laws are wrong and unfair. It was pretty apparent that be thinks these laws should not be there. Hopefully, he won't punt.

Posted by: woody | Aug 6, 2014 10:00:42 PM

Judge Cook is the most conservative on the panel, not Judge Sutton. I know both well.

Judge Cook will probably rule against us, but she will be extremely polite in doing so.

Judge Sutton is easily one of the top dozen jurists in the country. I believe that he believes that these laws are unfair. He is, however, a believer in the separation of powers and judicial restraint. He restrained himself on Obamacare and was right under then-existing Supreme court precedent. Jurisprudentially, these cases are extremely close.

Whatever Judge Sutton writes, every serious constitutional scholar and every federal jurists will take note.

If Judge Sutton rules against us, I do believe that the en banc court would be pro-equality by a narrow margin.

Posted by: michiganjd | Aug 7, 2014 1:18:01 AM

@MichiganJD, thanks for the analysis. That was my perception of him as well, but it is hard to be sure from a recording.

This one is a really big deal. A 6-fer and would take us from 19 to 23, except we really already have 16 more with rulings or in Circuits that have already ruled, so from 19-16 to 19-20. Thirty-Nine looks really good!